IN THE CASE OF:  	Mr. 

      BOARD DATE:  	7 October 2013

      CASE NUMBER:  	AR20130002781
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.




      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests an upgrade of his discharge from under other than honorable conditions to honorable.

2.  The applicant states, in effect, he was wrongfully and unfairly discharged from the Army because certain members of his chain of command invented false information with the intent to mislead members of the administrative separation board.  He was put in a situation where he could not to receive necessary legal assistance from the military.  Two officers were untruthful with the intent of hurting his life and causing a lifetime of prejudice.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		4 February 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			26 November 2008
d. Reason/Authority/SPD/RE Code:	Misconduct (Civil Conviction), AR 635-200, 							paragraph 14-5, JRB, RE-3
e. Unit of assignment:			Home Detachment, 1-30th Infantry Regiment, 							2nd Brigade Combat Team, Fort Stewart, GA 
f. Current Enlistment Date/Term:	26 March 2001, 3 years
g. Current Enlistment Service:	3 years, 2 months, 18 days
h. Total Service:			5 years, 7 months, 11 days
i. Time Lost:				1,625 days
j. Previous Discharges:		RA (950522-971014), GD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	00D10, Special Duty Assignment
m. GT Score:				94
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	Yes, but not contained in the available records
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 26 March 2001, for a period of 3 years.  He was 31 years old at the time of entry and was a high school graduate.  His record did not show any personally earned awards for acts of valor or meritorious achievements and he did not have any combat service.  He was serving at Fort Stewart, GA when his discharge was initiated.  



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 23 June 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of misconduct-conviction by civil court, for being convicted of mail fraud, conspiracy and false claims against the government (insurance fraud), (070623).

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 12 August 2008, the applicant consulted legal counsel, was advised of the impact of the discharge action, refused to make any election, whether to request or waive his rights or consideration of his case by an administrative separation board, and did not indicate if a statement was submitted in his behalf and he refused to sign the election of rights.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate and senior commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.

4.  On 26 August 2008, the separation approving authority referred the applicant’s case to an administrative separation board.  However, the findings and recommendations of the board are not contained in the available record.

5.  On 13 November 2008, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank.

6.  The applicant was discharged from the Army on 26 November 2008, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-5, AR 635-200, for misconduct (civil conviction), a Separation Program Designator code (SPD) of JKB and an RE code of 3.

7.  The applicant's record shows he was absent without leave (AWOL) for 1,625 days during the period 23 February 2003 through 5 August 2007, he was apprehended by civil authorities. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  U.S. District Court, Southern District of Georgia (Savannah), Criminal Docket for case number CR 403-112, dated 5 September 2003, five pages, which indicated the applicant’s charges.

2.  U.S. District Court, Southern District of Georgia (Savannah), verdict form, case number CR 403-112, dated 29 June 2008, which showed the verdict for the applicant’s charges.




EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149, applicant’s letter, cover letter with self-authored statement, three pages, Letter, Department of Defense, two pages, Enlisted Record Brief (ERB), dated 11 November 2011; off the record discussions, two pages, United States District Court, Southern District of Georgia, Chapter 14-5 discharge packet, twelve pages, and a DD Form 214. 

POST-SERVICE ACTIVITY: 

The applicant did not provide any with his application.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted.   

2.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.


2.  The service record shows that the applicant’s discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By the misconduct (i.e., civil court conviction), the applicant diminished the quality of his service below that meriting a fully honorable or general, under honorable conditions discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

3.  The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade.  However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.

4.  The applicant contends he was wrongfully and unfairly discharged from the Army because certain members of his chain of command invented false information with the intent to mislead members of the administrative separation board.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support these contentions.  There is no evidence in the record, nor has the applicant produced any evidence to support these contentions that his discharge was wrong and unfair or that anyone invented false information to mislead the administrative separation board.  The applicant’s statement alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.

5.  The applicant further contends he was put in a situation where he could not receive necessary legal assistance from the military.  The evidence of record shows on 12 August 2008, the applicant consulted legal counsel, was advised of the impact of the discharge action, refused to make any election as to whether to request or waive his rights or consideration of his case by an administrative separation board, and did not indicate if a statement was submitted on his behalf and he refused to sign the election of rights.

6.  The applicant also contends two officers were untruthful with the intent of hurting his life and causing a lifetime of prejudice.  However, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record. 

7.  The records show the proper discharge and separation authority procedures were followed in this case.  

8.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Record Review      Date:  7 October 2013      Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  None

Witnesses/Observers:  NA

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					NA

















Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130002781



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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